People v. Antonio

By the Court, Rhodes, J. The defendant was indicted and convicted of grand larceny. It was admitted by the District Attorney and was proven that the defendant was an Indian.

The most important question in- the case arises upon the [405]refusal of the Court to give the jury the following instruction: “That the defendant cannot be convicted of larceny under the law as it is applied to Indians.” The counsel for the defendant claims that the defendant, being an Indian, is liable to be prosecuted and punished for the offense charged against him, according to the provisions of an Act for the protection and punishment oí Indians, passed April 22, 1850, and not under the general statutes concerning crimes and punishments. The Act of 1850 for the protection and punishment of Indians was, in our opinion, obviously intended to be applied to Indians in tribes, or when living in separate communities or companies, and not to a case where an Indian has been living, as in this case, for years among white men.

But if this view is incorrect, there are other reasons militating against the defendant’s proposition.

The first section provides that “ Justices of the Peace shall have jurisdiction in all cases of complaints by, for or against Indians, in their respective townships in this State,” and the sixteenth section provides that “an Indian convicted of stealing horses, mules, cattle or any valuable thing, shall be subject to receive any number of lashes not exceeding twenty-five, or shall be subject to a fine not exceeding two hundred dollars, at the discretion of the Court or jury,” and section seventeen gives the Justice the discretion to appoint a white man or an Indian to do the whipping in his presence.

The Attorney-General asks if the punishment prescribed is not “ cruel and unusual,” and therefore unconstitutional? We think it is liable to that objection, notwithstanding it is directed by the Act that the Justice “shall not permit unnecessary cruelty in the execution of the sentence.”

Besides this, the Act of 1856, (Wood’s Digest, 337,) defines both grand and petit larceny and prescribes the punishment to be inflicted upon conviction; and as the Act by its terms is applicable to all cases of larceny, it repeals by necessary implication previous Acts providing a different mode of punishment. The Act of April 20, 1863, concerning Courts of justice of this State organized under the amended Constitution,